Why California’s Native Americans Deserve More Than an Apology

Printed in the San Diego Union-Tribune June 27, 2019

Dancers of all ages make their way around the procession during the grand entry at Cuyamaca College’s third annual powwow in 2017. (San Diego Union-Tribune file photo)

Gov. Gavin Newsom’s executive order apologizing to California’s Native American population for nearly two centuries of “violence, exploitation, dispossession and the attempted destruction of tribal communities” is a welcome first step toward healing the wounds inflicted by that history. But it is only a first step.

California is hardly alone in mistreating its indigenous people, but this state took that pattern to extremes seen in few other places. Moreover, the vestiges of that shameful history continue to this day.

Looking back, it seems incomprehensible that the earliest official acts of the newly established state of California included a call for extermination of the indigenous population, the funding of militias to carry out that edict, and a law allowing Indian children to be separated from their families and their parents to be sold into indentured servitude — virtual slavery. Such actions decimated the Native American population, reducing them by 80% in just over 30 years. It is no exaggeration to call this attempted genocide. And this came after tens of thousands already had perished as the result of being removed from their ancestral lands, exposed to European diseases and forced into servitude by the Spanish mission system.

Today, Native American communities have rebounded, representing nearly 2% of the state population, with more than 700,000 members in 110 federally recognized tribes. Many tribes have prospered in recent years, since the introduction of on-reservation gaming and other forms of economic development. For those tribes, new revenues have translated into improved facilities and services, including education and health care.

But the majority of reservations are in remote locations where gaming development is not realistic and other economic activity yields marginal results. They continue to suffer from poverty, unemployment, inadequate services, substandard housing, substance abuse and overall lower quality of life — all legacies of having had their populations wracked by violence and disease, and having been excluded from the social and economic mainstream long afterward.

Most of this comes as a surprise to the non-Indian population. Schools skimp on teaching this history, even today describing the mission era in glowing terms and scarcely mentioning the horrific treatment of Indians at the hands of the state of California.

The disrespect and indignities suffered by the Native American community don’t stop there. Outsiders commonly trespass on reservation land, off-roading, illegally hunting and operating criminal enterprises. Public officials routinely challenge the powers of tribal authorities, denying their status as sovereign nations and seeking to subject them to regulations from which they are exempt under federal law. Local governments and private landowners who literally stole Indian water resources wage lengthy legal battles to avoid restoring those rights. Law enforcement agencies dispute the authority of tribal police forces.

Native American children attending public schools all too often are denied the opportunity to express their ethnic and cultural identities, in a throwback to the decades when children were removed from Native American families, sent to boarding schools and forbidden to even speak their tribal languages. And, particularly in rural areas, individual Indians continue to suffer from discrimination in housing, employment and services when living or working off the reservation.

Consequently, California has far to go in correcting past injustices to Native Americans and ensuring fair treatment going forward.

The governor’s executive order mandates establishment of a Truth and Healing Council, to properly document the treatment of Native Americans in California through collaboration with the state’s tribes. Like the Truth and Reconciliation Commission established in Canada to address similar issues in treatment of its First Nations population, and a similar body created in South Africa to heal the wounds left by generations of apartheid, this can be a useful and beneficial tool for clarifying the historical record, educating the public and building trust between the Indian and non-Indian populations. The council’s annual reports, and its final report in 2025, are intended to set a new path for that relationship.

Just as any journey begins with an initial step, the governor’s executive order and the apology it contains represent that first step.

For the first time, the state will hear from the Native American population about its experience, past and present, and use what is learned to craft the foundation for a new, better relationship. For California’s Native American population, that can’t come too soon.

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Tribes Urge 5th Circ. To Preserve Indian Health Law In ACA

By Andrew Westney

Law360 (April 2, 2019, 6:16 PM EDT) — The great majority of federally recognized tribes in the United States have urged the Fifth Circuit to preserve portions of the Affordable Care Act specific to Native Americans, saying those provisions have nothing to do with the individual mandate a lower court found unconstitutional.

A group of nearly 500 tribes, along with many national and local tribal organizations, told the Fifth Circuit in an amicus brief on Monday that a Texas district judge failed to analyze the history and purpose of the Indian Health Care Improvement Act, the “primary, stand-alone statutory framework for the delivery of health care services to Indian people by the United States” that was included in the ACA.

The IHCIA and other parts of the ACA dealing with tribal health care “provide the foundation for an independent, freestanding Indian health care system,” and were made part of the larger law in order to fulfill the government’s trust responsibility to tribes and individual Indians, according to the brief.

“Striking down the IHCIA and other Indian health provisions on the ground that a wholly unrelated private insurance coverage mandate is constitutionally invalid would disregard those responsibilities and subvert federal Indian health care policy, without any indication that Congress had anticipated — let alone intended — such a result,” the tribes said.

Read the rest of the story here at Law360.

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American Indian Probate Reform Act (AIPRA) and Indian Wills

For years CILS has prioritized the preservation and enhancement of the California Indian land base in California. Part of this work correlates with assisting individuals that have an Indian allotment or an interest in an allotment to understand their rights better and sometimes their responsibilities to future generations. CILS has conducted numerous presentations over the years regarding Native landowners’ rights under the American Indian Probate Reform Act (AIPRA) and the importance of careful estate planning for Indian trust assets. The AIPRA, enacted in 2004, provides for a national uniform inheritance scheme in situations where there is no valid Indian Will. The inheritance scheme is one that not every Indian trust holder may wish to have applied when determining who will inherit their trust assets. Unless an individual leaves a valid Indian Will, AIPRA’s scheme may control their trust property’s future. CILS presentations and Indian Will drafting help individuals make informed decisions. Typically, individuals have specific questions and concerns that they may not wish to voice to family members or friends but that CILS staff can address. All CILS offices provide Indian Will drafting for those holding Indian trust assets.

CILS Indian Will services are no-cost to those who qualify for our free legal services. For those who are over-income, CILS provides Indian Will drafting at an hourly rate – typically to cover the cost. While CILS does not generally take on work for individuals who are over-income, our Indian Wills practice is an exception. Most California private estate planning attorneys do not draft Indian Wills; their focus is upon those assets coming strictly under California state inheritance laws. Many of these private attorneys shy away from drafting Indian Wills, in part because of the perceived complexities involving Indian trust assets including Federal regulations, tribal codes, the AIPRA and the myriad of administrative agencies within the Department of the Interior. For CILS, however, this services is part of our common practice – and is much-needed throughout Indian Country.

CILS is available for Indian Wills/Indian estate planning presentations and Indian Will clinics.  Tribes can contact their local CILS office to arrange this service. Individuals holding Indian trust assets, such as allotment or heirship interests or Individual Indian Money (IIM) accounts, can also contact their local CILS office and speak with a representative about their eligibility for Indian Will drafting services.

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